STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIALYSIS OF BROWARD, INC., )

)

Petitioner, )

)

vs. ) Case No. 85-4454

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

and )

)

FLORIDA KIDNEY CENTER and ) RENAL SUPPORT SERVICES, INC., ) PLANTATION ARTIFICIAL KIDNEY ) CENTER, INC., and UNIVERSITY ) DIALYSIS ARTIFICIAL KIDNEY CENTER, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on August 18, 1986, in Fort Lauderdale, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Nathan Militzok' Esquire Dialysis of Broward, 1250 E. Hallandale Beach Blvd. Inc. Suite 1005A

Hallandale, Florida 3300

For Respondent: Lesley Mendelson, Esquire Department of Health Assistant General Counsel and Rehabilitative 1323 Winewood Boulevard Services Building One, Suite 407

Tallahassee, Florida 32399-0700s

For Intervenors: E. G. Boone, Esquire Florida Kidney Center Peter Giroux, Esquire and Renal Support 1001 Avenida del Circo Services, Inc. Venice, Florida 3428

For Intervenors: George N. Meros, Jr., Esquire Plantation Artificial Carlton, Fields Law Firm Kidney Center, Inc. P. O. Drawer 190

and University Tallahassee, Florida 32301 Dialysis Artificial

Kidney Center

The issue is whether Dialysis of Broward, Inc., is entitled to a Certificate of Need to establish a ten- station chronic hemodialysis center in Broward County, Florida. Petitioner presented no witnesses and had one exhibit admitted in evidence. Plantation Artificial Kidney, Inc., and University Dialysis Artificia1 Kidney Center presented the testimony of Vicki Burrier. No other testimony or exhibits were submitted by the other parties.

Petitioner indicated after the hearing that it intended to file a transcript, however no transcript has been filed. Proposed findings of fact and conclusions of law have been filed by all parties except Petitioner. At hearing Petitioner requested fifteen days to file proposed findings of fact and conclusions of law, however Petitioner had failed to file same. The proposed findings of fact that have been filed have been considered and a ruling has been made on each in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. Petitioner, Dialysis of Broward, Inc., apparently filed an application for a Certificate of Need, No. 4092, to establish a ten-station chronic hemodialysis facility in Broward County, Florida. The Intervenors all filed timely petitions to intervene and have standing to intervene in this proceeding.

   
   

2. At hearing, Petitioners presented no witnesses and only one admissible exhibit, the State Agency Action Report.

   
   

3. No other evidence was submitted to show entitlement by Dialysis of Broward, Inc., to the Certificate of Need sought.

   
   

4. According to the State Agency Action Report there are excess dialysis stations in Broward County and no need for the proposed facility.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding.

6. Section 381.494(6)(c), Florida Statutes, establishes the criteria which must be considered in evaluating an application for a Certificate of Need (CON). The applicant has the burden of proving that it meets the statutory criteria and is entitled to a CON. Boca Raton Artificial Kidney Center, Inc., et al. v. Department of Health and Rehabilitative Services, et al., 475 So. 2d 260,

   262 (Fla. 1st DCA 1985); Rehab Hospital Services Corporation v. Department of Health and Rehabilitative Services, 8 FALR 2389 (DHRS, 1986); North Broward Hospital District v. Department of Health and Rehabilitative Services, et al., 7 FALR 5585 (DHRS, 1985). See also Florida Department of Transportation v. J.W.C., 396 So. 2d 778 (Fla. 1st DCA 1981).

   
   

7. Petitioner offered no proof that its proposed facility satisfies any of the criteria in Section 381.494(6)(c), Florida Statutes. Hence, it has failed to carry its burden of proof and is not entitled to the Certificate of Need sought.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order and therein deny the application of Dialysis of Broward, Inc., for Certificate of Need No. 4092.

DONE and ENTERED this 20th day of October, 1986, in Tallahassee, Florida.

_

DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 20th day of October, 1986.

COPIES FURNISHED:

Nathan Militzok, Esquire

1250 E. Hallandale Beach Blvd. Suite 1005A

Hallanadale, Florida 33009

E. G. Boone, Esquire Peter Giroux, Esquire 1001 Avenida del Circo Venice, Florida 34284

George N. Meros, Jr. Carlton, Fields Law Firm

P. O. Drawer 190 Tallahassee, Florida 32301

Lesley Mendelson, Esquire Assistant General Counsel 1323 Winewood Blvd.

Building 1, Suite 407

Tallahassee, Florida 32399-0700

William Page, Jr. Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

APPENDIX

The proposed findings of fact of Department of Health of Health and Rehabilitative Services, Inc., Florida Kidney Center, Rena1 Support Services, Inc., Plantation Artificial Kidney Center, Inc., and University Dialysis Artificial Kidney Center are adopted in substance in Findings of Fact 1-4 of this Recommended Order.

Docket for Case No: 85-004454

Orders for Case No: 85-004454